Wednesday, November 21, 2018
An issue for all motorists, but one of particular interest to motorists using rural roadways is the length of time that a train can block a crossing. In rural areas, there may be few (if any) options for detouring around a blocked crossing.
Many states (and some towns and municipalities) have statutes the denote the maximum length of time that a train can block a crossing. But, can state law regulate the length of time a train blocks a crossing? Is the issue a matter of federal law? That’s the topic of today’s post – train blockage of crossings and how state and federal law deals with the issue.
Many states have statutes that specify the maximum length of time that a train can block a public roadway grade crossing. The state laws vary, but a general rule of thumb is that a blockage cannot exist for more than 20 minutes. There are numerous exceptions, of course, that concern such things as emergencies and when the blockage is a result of something beyond the control of the railroad. In addition, in states that don’t have a state law addressing the issue, there may be restrictions at the local level – cities, towns, villages and municipalities.
Here's a sample of a few state rules on the issue:
In Arizona, if an engineer, conductor or other employee of a railroad permits a locomotive or railcars to be or remain on a crossing of a public highway or over the railway in a manner that obstructs travel over the crossing for longer than 15 minutes is guilty of a class 2 misdemeanor. Ariz. Rev. Stat. §40-852. An exception is provided for an “unavoidable accident.” See also Terranova v. Southern Pacific Transportation Company, 158 Ariz. 125, 761 P.2d 1029 (1988).
Under Iowa law, a ten-minute maximum is the rule. Iowa Code §327G.32. Exceptions are provided when a blockage longer than ten minutes is required for the railroad to comply with signals affecting the safety of the movement of the train; when the train is disabled; or when it is necessary to comply with governmental safety regulations including but not limited to speed ordinances and speed regulations. Interestingly, a railroad employee is not subject to penalty under the provision if they were acting on orders of a supervisor or the railroad in general. In that case, the penalty for violating the law applies to the railroad. The Iowa provision also says that a political subdivision of the state may pass an ordinance dealing with the matter if it for a public safety purpose.
The Indiana law is similar to the Iowa law. In Indiana, public travel cannot be blocked for more than 10 minutes by any train, railroad car, or engine. Indiana Code §8-6-7.5-1. There are exceptions from the 10-minute rule in situations where the train, railroad car or engine cannot be moved by reason of uncontrollable circumstances. In addition, a railroad cannot permit successive train movements to obstruct vehicular traffic at a highway grade crossing until all vehicular traffic that has already been delayed by a train has been allowed at least five minutes to clear. Violations of the law constitutes a “Class C infraction.” The penalty is generally imposed on the railroad corporation.
Nebraska, the home of Union Pacific Railroad, has a very detailed, lengthy statute dealing with the issue. A train obstruction of a public highway, street or alley in any unincorporated town or village in the state is prohibited beyond 10 minutes. Neb. Rev. Stat. §17-225. The penalty for violation is a fine of $10 to $100. In addition, any members of a train crew, yard crew, or engine crew cannot be held personally responsible for any violation if they were acting on orders by their employer. It is the railroad that bears the responsibility to comply with the law. Neb. Rev. Stat. §17-594. Nebraska law also states that at crossings, a train cannot be stored or parked in a manner that obstructs the motoring public’s view of an oncoming train. Neb. Rev. Stat. §74-1323. Violation of the Nebraska provision is coupled with a minimal penalty – Class IV misdemeanor with a maximum fine of $200 for each offense (every day constitutes a separate offense).
Does Federal or State Law Control?
An interesting question involves the extent to which the state laws on public roadway grade crossing blockage laws are valid. Railroads are subject to an interesting mix of federal and state law. Does federal law preempt state law on this issue? That was the question presented in a recent Kansas case.
In State of Kansas v. Burlington Northern Santa Fe Railway Company, No. 118,095, 2018 Kan. App. LEXIS 63 (Kan. Ct. App. Nov. 2, 2018). Burlington Northern Santa Fe Railway (BNSF) operates trains through Bazaar (an unincorporated community) in Chase County, Kansas. At issue were two railroad crossings where the main line and the side lines crossed county and town roads. The side line is used to change crews or let other trains by on the main line. Early one morning, the Chase County Sherriff received a call that a train was blocking both intersections. The Sherriff arrived on scene two hours later and spoke with a BNSF employee. This employee said that he was checking the train but did not state when the train would move. The Sherriff then called BNSF three times. The train remained stopped on both crossings for approximately four hours. The Sherriff issued two citations (one for each engine) under K.S.A. 66-273 for blocking the crossings for four hours and six minutes.
K.S.A. 66-273 prohibits railroad companies and corporations operating a railroad in Kansas from allowing trains to stand upon any public roadway near any incorporated or unincorporated city or town in excess of 10 minutes at any one time without leaving an opening on the roadway of at least 30 feet in width. BNSF moved to dismiss the citation, but the trial court rejected the motion. During the trial, many citizens presented evidence that they could not get to work that day and a service technician could not reach a home that did not have hot water and was having heating problems. BNSF presented train logs for one of the engines. These logs showed that one engine was only stopped in Bazaar for 8 minutes to change crews and was not in Bazaar at 9:54 a.m. The Sheriff later conceded that he might have mistaken the numbers on the engines for the citations. There were no train logs for the other engine. BNSF also stated there could be other alternatives from blocking the crossings but uncoupling the middle of the train would be time consuming and unsafe. The trial court ruled against BNSF and entered a fine of $4,200 plus court costs.
On appeal, BNSF claimed that the Interstate Commerce Commission Termination Act (ICCTA) and Federal Railroad Safety Act (FRSA) preempted Kansas law, and that the evidence presented was not sufficient to prove a violation of Kansas Law. The appellate court agreed, holding that the ICCTA, by its express terms contained in 49 U.S.C. 10501(b), preempted Kansas law. While the appellate court noted that the Kansas statute served an “admirable purpose,” it was too specific in that it applied only to railroad companies rather than the public at large. Also, the statute had more than a remote or incidental effect on railway transportation. As a result, the Kansas law infringed on the Surface Transportation Board’s exclusive jurisdiction to regulate the railways in the United States. The court noted that the Surface Transportation Board was created by the ICCTA and given exclusive jurisdiction over the construction, acquisition, operation, abandonment, or discontinuance of railroad tracks and facilities. In addition, the appellate court noted that the Congress expressly stated that the remedies with respect to regulation of rail transportation set forth in the ICCTA are exclusive and preempt other remedies provided under federal or state law The appellate court did not consider BNSF’s other arguments.
The Kansas case indicates that state law may have to be carefully tailored to apply broadly to roadway obstructions generally, and not have anything more than a slight impact on railway transportation. If those requirements are not satisfied, federal law may control.
Have a blessed Thanksgiving. I will not be posting on Friday this week. The next post will be on Tuesday Nov. 27.